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Appeals court strikes down Va. same-sex marriage ban

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A federal appeals court panel in Richmond on Monday upheld a ruling from a lower court that struck down Virginia’s ban on same-sex marriage.

In a 2-1 decision, the 4th U.S. Circuit Court of Appeals judges agreed with U.S. Judge Arenda L. Wright Allen’s ruling in February that the 2006 amendment to the Virginia Constitution defining marriage as between a man and a woman violates the equal protection clause and due process clause of the 14th Amendment of the U.S. Constitution.

The decision goes into effect in 21 days, unless the defendants file a motion to appeal — which they are likely to do. The case will then head to the U.S. Supreme Court for review.

“Civil marriage is one of the cornerstones of our way of life. It allows individuals to celebrate and publicly declare their intentions to form lifelong partnerships, which provide unparalleled intimacy, companionship, emotional support and security,” Judge Henry F. Floyd wrote in his majority opinion.

“The choice of whether and whom to marry is an intensely personal decision that alters the course of an individual’s life. Denying same-sex couples this choice prohibits them from participating fully in our society, which is precisely the type of segregation that the 14th Amendment cannot countenance,” he wrote.

The court’s decision is significant because it also renders unconstitutional similar marriage bans in North Carolina, South Carolina and West Virginia — states that are part of the 4th Circuit. Same-sex marriage is already legal in Maryland, which is also under the court’s jurisdiction.

This marks the third time that an appellate-level court has ruled on state marriage bans following the dismantling of a key section of the federal Defense of Marriage Act last summer, and it sets the stage for the Supreme Court to consider state-level laws. Last month, the 10th U.S. Circuit Court of Appeals struck down gay marriage bans in Utah and Oklahoma. The precedent from those separate rulings also applies to Wyoming, Colorado and Kansas.

The 4th Circuit panel of Floyd, Presiding Judge Paul V. Niemeyer and Judge Roger L. Gregory heard oral arguments in the Virginia case May 13. Attorneys defending the marriage amendment argued that defining marriage was a right left up to the states, while lawyers challenging the law told the panel that the prohibition has created two classes of people.

Gregory, who was first appointed by President Bill Clinton, and Floyd, named to the court by President Barack Obama — voted to uphold the ruling.

The sole dissenter was Niemeyer, appointed by President George H.W. Bush, who wrote that the court’s decision “fails to take into account that the ‘marriage’ that has long been recognized by the Supreme Court as a fundamental right is distinct from the newly proposed relationship of a ‘same-sex marriage.’”

Theodore B. Olson, lead co-counsel for the plaintiffs in Bostic v. Rainey, said that Monday’s ruling stands as a testament “that all Americans are created equal and denying loving gay and lesbian couples the opportunity to marry is indefensible.”

Timothy B. Bostic and Tony C. London, a gay couple from Norfolk, had filed the suit last July after they had been denied a marriage license by the local circuit court clerk.

“Each and every milestone in this fight for marriage equality brings Tony and me one step closer to making our dream of being married a reality,” Bostic said of Monday’s ruling. “Our victory today reminds us why we filed this lawsuit — to fight for respect and full equality not only for us, but for all Virginians.”

Chesterfield County couple Carol Schall and Mary Townley also signed on as plaintiffs, backed by the American Foundation for Equal Rights. Lambda Legal and the American Civil Liberties Union of Virginia were allowed to join the Bostic case on behalf of a class of all of Virginia’s same-sex couples.

Schall said the court’s decision reminded her of how proud she is to be a Virginian.

“Mary and I have lived here for over 40 years, have been in a wonderful relationship for nearly 30, and have raised a beautiful daughter here in our home state. We could not be more thrilled with the judges’ decision,” she said.

Carl Tobias, a constitutional law professor with the University of Richmond School of Law, said that the majority of the court found a “fundamental right to marry” and that Virginia’s marriage amendment violates the due process and equal protection clauses of the 14th Amendment.

“The majority applies strict scrutiny and finds none of the state’s justifications for the ban is sufficient to deny plaintiffs marriage equality,” he said.

The case gained national attention in January when newly elected Attorney General Mark R. Herring announced that he found Virginia’s marriage amendment unconstitutional under federal law and that he would side with the plaintiffs in the case — leaving the commonwealth without a defense from the state.

“No effort to restrict the rights or to limit the opportunities of our fellow Americans has ever succeeded in the long term. Today is yet another victory for the principle of equality that is so central to the American experience,” Herring said at a news conference in Richmond on Monday.

But the attorney general also applauded the court’s decision to put the ruling on hold.

“Right now, the (same-sex marriage) ban remains to be in effect pending appeals or motions for rehearing and things of that nature. If there are appeals taken, a stay would be appropriate to avoid legal confusion,” he said.

Gov. Terry McAuliffe said that he was “overjoyed” by the news that, as a result of Monday’s ruling, “Virginia will become a state where two people who love each other can get married regardless of their sexual orientation.”

The court’s decision marks a “historic ruling for the commonwealth,” McAuliffe said. “Its effect will affirm once again that Virginia is a state that is open and welcoming to all.”

James Esseks with the American Civil Liberties Union, who argued the case for the class before the appeals court, said that in the 47 years since Loving v. Virginia, a federal case that ended bans on interracial marriage, committed same-sex couples in the commonwealth have been patiently waiting for the freedom to marry.

“Today’s decision sends a message that everyone deserves the dignity and protection that only comes with marriage,” Esseks said.

James Parrish, executive director of the gay rights group Equality Virginia, hailed the ruling as a victory for “love and fairness” in Virginia.

“We are one step closer — in Virginia, the South and America — to recognizing and celebrating equality and the diversity of love, commitment and family,” Parrish said.

In a joint statement, Catholic Bishops Paul S. Loverde and Francis X. DiLorenzo called the ruling “a fundamental misunderstanding of the intrinsic nature of marriage” and an injustice to Virginia voters.

“We maintain that those with same-sex attractions must be treated with respect and sensitivity. However, by rejecting the state amendment which affirms marriage as the unique institution between one man and one woman, the court seeks to redefine an age-old institution, rooted in natural law, and extend a right that does not — and cannot — exist between people of the same sex,” the statement said.

The Family Foundation of Virginia also expressed disappointment with the ruling.

“It’s unfortunate that the court rejected the right of Virginians to define marriage consistent with their concern with what’s best for children and society as a whole,” said the foundation’s president, Victoria Cobb.

“It’s sad that the judges have chosen to disenfranchise the 1.3 million Virginians who legally voted to amend our constitution,” Cobb said.

When Virginia in 2006 voted on the statewide referendum defining marriage as between a man and a woman, 57 percent of voters supported the law and 43 percent opposed the measure.

Floyd wrote in his opinion that while Americans’ ability to speak with their votes is “essential to our democracy,” the will of the people “is not an independent compelling interest that warrants depriving same-sex couples of their fundamental right to marry.”

mschmidt@timesdispatch.com

(804) 649-6537

Twitter: @MSchmidtRTD

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